Melcliff Associates v City of Portland - Plaintiffs Motion for Summary Judgment

7/25/2019 Melcliff Associates v City of Portland - Plaintiffs Motion for Summary Judgment

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IN

THE CIRCUIT

COURT

FOR

THE STATE

OF

OREGON

FOR

THE

COLTNTY

OF

MULTNOMAH

MELCLIFF

ASSOCIATES,

LLC,

Plaintift

V

Case

No.

l5CV3

1078

PLAINTIFF'S

MOTION

FOR

SUMMARY

JUDGMENT

ORAL

ARGUMENT

REQUESTED

CITY

OF

PORTLAND,

an

Oregon

Municipal

Corporation,

Defendant.

UTCR 5.050

Pursuant

to UTCR

5.050,

plaintiffs

request

oral

argument

on this

motion.

Plaintiffs

estimate

that

60 minutes

are

required

for

oral

argument.

Official

coufi reporting

services

are

requested.

MOTION

Pursuant

to

ORCP

47,

plaintiffs respectfully

move

for summary

judgment:

(1)

Declaring

that

Portland City

Code

Section

30.01.085

( Ordinance )

is

invalid

and

unenforceable

because

it

is

preempted

by

ORS

91

'225;

and

(2)

Permanently

enjoining

Defendant

City

of Portland

( City )

from

taking any

action

to

enforce

the

Ordinance.

This motion

is supported

by the

following

Memorandum

of

Points

and

Authorities,

the

Declaration

of

Timothy

Gray

in

Support

of

Plaintiffls

Motion

for

Summary

Judgment

and the

records

and

files of this

case

Page

1

-

PLAINTIFF'S

MOTION

FOR SUMMARY

JUDGMENT

DAVIS

WRIGHT

TREMAINE

LI,P

DWT

28472413v3

0105706-000001

1300 S

w

Fifth Avenre,

Suite

2400

Portland,

Oregon

97201-510

(s03)

24 I

-2300

rnain

'

(503)

778-5299

lax


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POINTS

AND

AUTHORITIES

I.

INTRODUCTION

This

action challenges

Portland

City Code

Section 30.01.085

( Ordinance ),

which

flouts

an unambiguous

and express

preemption provision duly enacted

by the

Oregon

legislature.

The

Ordinance

is

irreconcilable with

the

preemption

statute

and does

not

fall

within

any

of the

limited

exceptions

contained

in

that

statute.

Accordingly,

this

Courl

should

declare

the

Ordinance

preempted

and

enjoin

its enforcement.

In

1985,

the

Legislative

Assembly

enacted

ORS 91

.225,whichpreempted

all

local

rent

control

enactments

and reserved

to the

state

the exclusive

right to

regulate

residential

rental

prices.

ORS

91

.225

notonly

ensures

uniform

statewide rent regulations,

it

prevents

the

imposition of

general

restrictions

on housing

rents

ORS 91

.225(1)'

Despite

thirty

years

of exclusive

state

control

of

rent

regulation,

the City

of

Portland

has

adopted

an Ordinance

attempting

to do

just

what

ORS

9l

.225

proscribes-impose

restrictions

on

rent

price

adjustments.

The Ordinance

prohibits residential

property

lessors

from adjusting

rent

prices

more than

five

percent over a 12-month

period

without

providing a full

90

days'

notice'

By

tripling

the

notice

period

specified

by

ORS 90.220,

the

Ordinance

conflicts

with Oregon

state

law and

constricts

property

owners'

ability

to

respond

efficiently

to changes

in

the

rental

market.

For the duration

of this

extended

notice

period,

the

Ordinance

controls the

rent

that

may

be

charged

for

the

rental

of

any

dwelling,

in violation

of

ORS

91.225.

Therefore,

the Ordinance

is

invalid and

unenforceable.

U.

BACKGROUND

A.

State

law

prohibits

local

regulation

of

residential

property rental

prices.

Responding

to decades

of

research

showing

the devastating

consequences

of

rent

control

policies,

Oregon's

Legislative

Assembly

passed

emergency

legislation

in

1985 that

preempted

local

rent regulation.

In its entirety,

the

resulting

statute

now

provides:

il

Page2

- PLAINTIFF'S

MOTION

FOR SUMMARY

JUDGMENT

DAVIS WRIGHT

TREMAINE LLP

1300

S.W.

Fifth

Avenue, Suite

2400

Portland, Oregon

97201-5610

(503)

241-2300 rnain

'

(503)

778-5299

fax

Dv,/T 2847 24 13v3

0

1 05706-00000

I


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(1)

The

Legislative

Assembly

finds

that

there

is

a

social

and

economic

need

to

insure an

adequate

supply

of

affordable

housing

for Oregonians.

The

Legislative

Assembly

also

finds

that

the

imposition

of

general

restrictions

on housing

rents

will

disrupt

an

orderly

housing market,

increase

deferred

maintenance

of existing

housing

stock,

lead

to

abandonment

of existing

rental

units

and

create

a

property

tax

shift

from

rental-owned

to owner-occupied

housing.

Therefore,

the

Legislative

Assembly

declares

that

the

imposition

of

rent

control

on

housing

in the State

of

Oregon

is

a

matter

of

statewide

concern.

(2)

Except

as

provided

in subsections

(3)

to

(5)

of

this

section,

a

city

or

county

shall

not

enact

any

ordinance

or

resolution

which

controls

the

rent

that

may

be

charged

r

the

rent(tl

of any

dwelling

unit.

(3)

This

section

does

not

impair the

right

of

any

state

agency,

cit ,

county

or

urban

renewal

agency

as defined

by

ORS

457

'035

to

reserve

to

itselfthe

right

to

approve

rent increases,

establish

base

rents

or establish

limitations

on

rents

on

any

residential

property

for

which

it has

entered

into a contract

under

which

certain

benefits

are applied

to the

property for the

expressed

putpose

of

providing

reduced

rents

for

low

income

tenants.

Such

benefits

include,

but

are

not

limited

to,

properly tax

exemptions,

long-tetm

financing,

rent subsidies,

code

enforcement

procedures and

zoning

density

bonuses.

(4)

Cities

and

counties

are

not

prohibited

from

including

in

condominium

conversion

ordinances

a

requirement

that,

during

the

notification

period

specified

in

ORS

100.305,

the owner

or

developer

may

not

raise

the

rents

of

any

affected

tenant

except

by

an

amount

established

by

ordinance

that

does

not exceed

the

limit

imposed

by

ORS

90.493.

(5)

Cities,

counties

and

state

agencies

may

impose

temporary

rent

controls

when

a

natural

or

man-made

disaster

that

materially

eliminates

a

significant

portion

of

the

rental

housing

supply

occurs,

but

must

remove

the

controls

when

the

rental

housing

supply

is

restored

to

substantially

normal

levels.

(6)

As used

in this

section,

"dwelling

unit"

and

"rent"

have

the

meaning

given

those

terms

in ORS

90.100.

Page 3

-

PLAINTIFF'S

MOTION

FOR

SUMMARY

JUDGMENT

DAVIS

WRIGHT

TREMAINE

LLP

1300 S.W.

Fifth Avenue,

Suite

2400

Portland,

Oregon

9720

-5610

(503) 241-2300

main'

(503)

178-5299

fax

DWT

284724

l3v3 01

05706-00000

I


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(7)

This

section

is applicable

throughout

this

state

and

in all cities

and counties

therein.

The electors

ot the

governing

body

of a city

or county

shall

not

enact,

and

the

governing body

shall

not

enforce,

any ordinance,

resolulion

or

other

regulation

that is

inconsistent

with

this section.

ORS

91 .225

(emphasis

added).

By

its

plain

text,

ORS

9l .225

unambiguously

preempts any

local

enactment

that

controls

the

rent that

may

be charged

for the

rental

of

any

dwelling

unit,

subject

to

several

nalrow

exceptions

not implicated

in this

case.

Together

with

the

Residential

Landlord

and

Tenant

Act,

ORS

chapter

90,

the

purpose of

ORS

91

.225

was to

avoid

a

patchwork of

harmful

and

conflicting

local laws,

As

part

of

this

system,

the

legislature

adopted

a statewide

rent

increase

notice

period. ORS

90.220

provides:

(7)

except

as

otherwise

provided

by

this

chapter: (a)

*

* *

Rent may not

be increased

without

a

30-day

written

notice

thereof

in

the

case

of a

month-to-month

tenancy

*

tr'

*'

This

3O-day

notice

period reflects

the

legislature's

careful

balancing

of

the

interests

of tenants,

the

rights

of

landlords,

and

the

risks of

interfering

with

the

efficient

functioning

of the

residential

rental

market.

B.

The Ordinance

regulates

residential

property

rental

price

increases.

Despite the

state

legislature's

deliberate

choice

of a

3O-day

notice

period, the

Portland

City

Council

decided

that

Portland

renters

need

more advance

notice

of

rental

increases

than

the

state

law

minimum

notice

of

30 days,

due

to [r]ecord

high

rents.

Ordinance

No.

187380'

Accordingly,

on

October

14,2015,the

Portland

City

Council

added

the

Ordinance

to the

Portland

City

Code.

Id. The Ordinance

states,

in

relevant

part:

A.

In

addition

to

the

protections

set

forth

in

the

Residential

Landlord

and

Tenant

Act,

the

following

additional

protections apply

to

Tenants

that

have

a

Rental

Agreement

for

Premises

covered by

the

Act.

*****

Page

4

-

PLAINTIFF'S

MOTION

FOR

SUMMARY

JUDGMENT

DAVIS

WRIGHT

TREMAINE

LLP

DWT

28472413v3

0105706-000001

1300 S W

Fifth

Avenue,

Suite 2400

Portland,

Oregon

97201-5610

(503)

241

-2300

main

'

(503) 778'5299

fax


5/28

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C.

A

Landlord

may

not increase

a

Tenant's

Rent or

Associated

Housing

Costs

by

5

percent or more over

a

12

month

period

unless

the

Landlord

gives

notice

in

writing

to each

affected

Tenant:

(a)

at

least

90

days

prior

to the

effective

date

of the

rent

increase;

or

(b)

the

time

period

designated

in the

Rental

Agreement,

whichever

is

longer.

Such

notice must specify the amount

of

the increase'

the

amount

of the

new

Rent or

Associated

Housing

Costs and

the

date,

as

calculated

under

the

Act,

when

the

increase

becomes

effective.

Portland

City

Code Section

30.01.085.

Subsection

D. of

the

Ordinance

imposes

stringent

penalties for

violation

of

the

notice

requirement,

including

fines

of

up

to

three

months

Rent

as

well

as

actual

damages,

reasonable

attorney

fees and

costs

for each

affected

tenant.

On

November

13, 2015,

only 30

days

after

its enactment,

the 90-day

notice

period

took

effect.

C.

Plaintiff

challenges

the

Ordinance's

regulation

of

rental

price

increases

Plaintift

Melcliff

Associates,

LLC,

is

an

Oregon

Limited

Liability Company.

Declaration

of

Timothy

Gray

in

Support

of

Plaintifls

Motion

for

Summary

Judgment

( Gray

Decl. ),

fl3.

Plaintiff

owns

multi-family

residential

property

within

the

City of

Portland,

which

it

leases

out

under

Rental

Agreements

governed

by

the

Residential

Landlord

and

Tenant

Act, ORS

chapter

90.

Gray

Decl.,

tj4.

Plaintiff

has entered

Rental

Agreements

that

allow

rent increases

with

30

days'notice

in accordance

with

ORS 90.220.

Gray

Decl.,

fl5.

Plaintiff

is adversely

affected

by

the enactment

and

enforcement

of the

Ordinance,

which

prevents

plaintiff

from

adjusting

rent

prices

in accordance

with

its Rental

Agreements

and

ORS

chapter

90.

Gray

Decl',

T6.

Plaintiff

filed this

lawsuit

on

Novemb

er

17

,2015,

seeking

a

declaration

that

the

Ordinance

is

invalid

and

unenforceable

and

seeking

a mandatory

injunction

petmanently

enjoining

the

City

from

enforcing

the

Ordinance.

rfl.

STANDARI)

Summary

judgment

is appropriate

where

the

pleadings,

depositions,

affidavits,

declarations

and

admissions

on

file

show

that

there

is no

genuine

issue as

to

any

material

fact

Page 5

-

PLAINTIFF'S

MOTION

FOR

SUMMARY

JUDGMENT

t)w'r

2s4iz4t3v3 0r05706-00000r

J'3

#ill;i,?y*ll:ii '

Potland,

Oregon

97201-561

0

(503)

241'2300

main '

(503)

'778-5299

fax


6/28

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and

that

the

moving

party

is entitled

to

prevail

as

a matter

of

law.

ORCP

47 C.

No

genuine

issue

as to a

material

fact

exists

if,

based

upon the

record

before

the

court viewed

in

a

manner

most

favorable

to the

adverse

party, no objectively

reasonable

juror

could

retum

a

verdict

for the

adverse

party.

ORCP

47

C;Jones

v. General

Motors

Corp.,325 Or

404,407

(1997).

If

the

party

moving

for summary

judgment

has

produced enough

evidence

to

establish

the absence

of

a

genuine issue as

to

any

material

fact, the

adverse

parly

must

demonstrate

that

it has

sufficient

evidence

to entitle

it

to

a

jury

determination.

Estes

v.

Lewis

and

Clark

College,l52

Ot

App 372,

383

(1ee8).

IV.

ARGUMENT

A.

Plaintiff

has

standing

to

seek

declaratory

and

injunctive relief

As

an initial

matter,

plaintiff has standing

to challenge

the validity

of

the

Ordinance'

1.

Plaintiff

has

standing

to

pursue

declaratory

relief

pursuant

to

the

.

uniform

Declaratory

Judgments

Act

( DJA ),

ORS

28.010

to

28.160.

Plaintiff

has standing

because

its

legal rights

are

currently

affected

by the

Ordinance.

Standing

is

a

concept

that

identifies

whether

a

party

to

a

legal

proceeding

possesses a

status

or

qualification necessary

for

the

assertion,

enforcement,

or

adjudication

of

legal

rights

or

duties'

Kellas

v. Dept.

of Corrections,34I

Or

471,476-77

(2006).

Whether

a

particular

plaintiff

has

standing

depends

on

the

particular requirements

of

the statute

under

which

he or

she

is seeking

relief.

Morganv.

Sisters

School

Dist. No.

6,353

Or

189,

194

(2013).

Accordingly,

because

plaintiff

seeks

declaratory

relief

under

the

DJA,

the

statutory

provisions of

the

DJA

govern

whether

plaintiff has standing.

The

DJA

provides:

Any

person interested

under a

deed,

will,

written

contract

or

other

wriiig

constituting

a

contract, or whose

rights,

status

or other

legal

rlations

are

ffected

by

a

constitution,

statute,

municipal

ch-arter,

ordinance,

contract

or

franchise

may

have

determined

any

question

of construction

or

validity

alislng

under

any

such

instrument,

constitution,

statute,

municipal

charter,

ordinance,

contract

or

franchise

and obtain

a

declaration

ofrights,

status

or

other

legal

relations

thereunder.

Page6

-

PLAINTIFF'S

MOTION

FOR SUMMARY

ruDGMENT

DAVIS

WRIGHT

TREMAINE

LLP

DWT

28472413v3

0105706-000001

1300 S.W

Fifth

Avenue, Suite

2400

Potland,

Oregon

97201-5610

(503)

241

-2300

rrain

'

(503)

7'8-5299 fax


7/28


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contingent

or hypothetical

events

.

Morgan,

353

Or at

196.

Third,

declaring

the

Ordinance

invalid

will

redress

the

injury

that

is the subject

of the

declaratory

judgment

action,

as

plaintiff

will

be able

to

avoid

further financial

impediments

by

modifying

rent

prices

in accordance

with

state

law.

Morgan,353

Or

at

191.

Because

the

Ordinance

directly

affects

plaintiffls

rights,

status

or

other

legal

relations,

a

declaration

in

plaintiff

s favor

would

have an

immediate

effect

on

plaintiff

s

legal

interests,

and

plaintiff has

standing

to

seek

declaratory

relief

pursuant to

ORS

28.020.

2.

Plaintiff also

has standing

to

seek

injunctive

relief.

Because

plaintiff has

standing

to

pursue a claim

for

declaratory

relief,

it

follows

that

plaintiff

also has

standing

to

seek

injunctive

relief.

Although

no

statute govelrrs

the

issue

of

standing

to seek

injunctive

relief,

the

Oregon

Supreme

Court

has

long

applied

essentially

the

same

standing

requirements

that

ordinarily

apply

in

declaratory

judgment

actions.

Nordbye

v.

BRCP/GM

Ellington,2Tl

Or

App

168,

177

(2015). In

fact,

as

the

Oregon

Supreme

Court

has

noted,

in a

number

of

cases

addressing

the

standing

requirements

under

the

DJA

where

plaintif

sought

both

declaratory

and

injunctive

relief,

the

court

did

not distinguish

between

the forms

of

relief

in assessing

the

issue

of standing

.

Morgou 353

Or

at20l

(citing

Hazell

v.

Brown,352

Or

455

,

467

-6g (2012);

League

of oregon

cities

v. state,

334

Or 645

,

657

-62

(2002);

Barcik

v.

Kubiaczyk,32l

Or ll4,l7g

(1995)).

Thus,

in

light

of

the

fact

that

the same

standing

standards

apply

to

fplaintiff

s]

request

for declaratory

relief

and

injunctive

relief,

plaintiff has

standing

to

seek

injunctive

relief

for

the

same

reasons

that

plaintiff

has

standing

to

seek

declaratory

relief'

Morgan,

353

Or at

201-02.

B.

The

Ordinance

is

a

rent

control

on

housing

preempted

by ORS

91.225.

Plaintiff

is

entitled

to

a

declaration

that the Ordinance is

invalid

and

unenforceable

because

ORS

91

.225

pteempts

the

Ordinance

as

a

matter

of

law.

il

il

Page

8

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PLAINTIFF'S

MOTION

FOR SUMMARY

JUDGMENT

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Hil,Ii.|.y*il3i'|o'

Portland,

Oregon

97201-510

(503)

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nrain'(503)

778-5299 fax


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l. Substantive

state statutes

preempt incompatible

local enactments.

When

a

local

enactment

is found incompatible

with

a state

law

in

an

aea

of substantive

policy,

the

state

law

will

displace

the

local

rule. City of

La Grande

v. Public

Employees

Retirement

Bd.,28I Or

137,I49

(1978).

Although

courts

should interpret

local

enactments,

if

possible,

to be

intended to

function

consistently

with

state

laws,

local enactments

must

yield

to

legislative

policy

where

both

cannot

operate

concurrently

or where

the legislature

meant

its

law to be

exclusive.

Id. at

148.

Thus,

a

statute

expressly

preempts

a

local

rule where

the

text,

context,

and

legislative

history

of

the

statute

unambiguously

expresses

an

intention

to

preclude

local

govemments from regulating

in

the

same

area as

that

govemed

by

the

statute.

Rogue

Valley

Sewer Servs.

v.

City

of

Phoenix,357

Or

437

,

450-51

(2015).

The legislature may

express

its unambiguous

intent

without

using the

word

'preempt'

itself

if

it

uses

equally

clear

terms,

such

as

no local

authority

shall

enact

any

ordinances,

rules or

regulations

in conflict

with

the

provisions

hereof.

1d

(quoting

ORS

461.030(l)).

Where

statutes

unambiguously

preempt local

enactments,

a naffowing

construction

of

state

law to

avoid

preemptive

effect

is

not

permissible .

Homebuilders

Ass'n of

Metropolitan

Portland

v.

Metro,250

Or

App 437,

443

(2012).

Instead,

the

application

of

the

statute

to

a

particular local

enactment

is

a

question

of

statutory

construction

resolved

by

resort

to the

familiar

methodology

set

forth

in State

v.

Gaines,346

Ot

160,

771

(2009).

1d

When

interpreting

a statute

under

this

methodology,

courts begin

by

examining

the

text

and context

of

the

statute

and

then

consider

any

legislative

history

proffered by

the

parties.

State

v.

Gaines,346

Or 160,

171-72

(2009).

If

the

legislature's

intent

remains unclear

after

examining

text,

context,

and

legislative

history,

the

court

may

resort to

general

maxims

of

statutory

construction

to

aid

in

resolving

the

remaining

uncertainty.

Id.

2.

The

plain

text

of

ORS

91.225

shows

that

it preempts the

Ordinance.

ORS

91

.225

unambiguously

preempts local enactments

like

Portland's

ordinance.

The

statute

begins

by

listing

the dangers

posed

by

the imposition

of

general restrictions

on

housing

Page 9

- PLAINTIFF'S

MOTION

FOR

SUMMARY

JUDGMENT

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are we here?

We

are

here because

of a

financial emergency.

And

therefore,

we ought

to

focus

on the

financial

question. And we're trying

to

avoid

harm

to

our citizens

by

extraordinary

rent

increases,

at

a

time

where they

have

few

other choices,

so

I

am

pleased

to

hear that

we

think that

that's both a

sound

policy

basis

and

focusing

on

the

heart of

problem. Id.

However,

the

purporled

reasonableness

of a

local

enactment

that controls

rent

increases,

even

for

90 days,

cannot

save

it

from

preemption.

ORS

91 .225

is not

limited

by

subjective

reasonableness

of

an ordinance

(e.g.

only

a little

rent

control);

it

expressly

preempts

any

ordinance

or

resolution

which

controls

the

rent that

may

be

charged

* * *.'r

ORS 91.225

(emphasis

added).

Reading a

reasonableness

safe

harbor into

the

statute

would

impermissibly

adopt

a narrowing

construction

of

state

law

to

avoid preemptive

effect

and

would

subvert

the

intent

of the

legislature.

Homebuilders

Ass'n,250

Or

App at

443

.

Defying

the

will

of

the

legislature

is not defensible

and

potentially

legal.

The

plain

text

of

ORS

91.225

establishes

that

local

govemments have

no

power

to

regulate

rent

increases-there

is

simply

no

needle

for

the

Council

to

thread

here.

3.

The

legislative

history

of

ORS

91.225

further shows

that

the

legislaiure

intended

to

preempt local

enactments

like

the

Ordinance.

If

the

statue's

text

left any

conceivable

doubt

as

to

the

legislature's

intent, the

legislative

history dispels

it. ORS 91.225

was adopted

by

the

1985

legislative

assembly

as

Chapter

335,

Oregon

Laws

1985

(Enrolled

H.B.

2505).

See

Exhibit

1.

ORS

91.225(2)

is identical

to

that

which

was contained

in the

enrolled

House

Bill and

the

Bill

as

originally

introduced,

which

is

attached

as Exhibit

2. The

amendment,

ultimately

adopted

by the

House

is attached

as

Exhibit

3

On

April 30,

1985, the

House

Committee

on the Judiciary

held

a

hearing

on the

bill

as

introduced.

Among

those

testiffing

as

proponents was Charlie

Hales,

who, at

the

time

represented

the

Home

Builders

Association

Metropolitan

Portland.

During

that

hearing,

Mr.

Hales

spoke

of

the

need for total

statewide

permanent

preemption

with

respect

to

rent regulation

il

Page

13

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PLAINTIFF'S

MOTION

FOR

SUMMARY

JUDGMENT

DAVIS WRIGHT

TREMAINE

LLP

DWT

28472413v3

0105706-000001

1300 S W

Fifth

Avenue,

Suite 2400

Portland,

Oregon

97201-5610

(503)

241-2300

nrain

'

(503)

'778-5299

fax

l0

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Because

the

Ordinance

is

invalid

and

unenforceable,

plaintiff

is entitled

to

a

permanent

injunction.

A

party

is entitled

to

injunctive

relief

where

there

is

an appreciable

threat

of continuing

harm,

Eagles

Five,

LLC

v.

Lawton,250

Or

App

413,

422

(2012),

and

the

harm

is

irreparable,

i.e.,thercmust

be

no

adequate

remedy

at

law,

Levasseur

v.

Armon,240

Or

pp250,259

(2010).

Further,

aparty

has

standing

to enjoin

a

goverrmental

action

where,

as here,

the

challenged

action

injures

the

plaintiff in

some

special

sense

that

goes

beyond

the

injury

the

plaintiff

would

expect

as

a

member

of

the

general

public. Eckles

v.

State,306

Or

380,

386

(1988).

Finally,

pursuant to

ORS

28.080,

a

court

may

grant

othet

forms

of

coercive

relief,

including

injunctive

relief'

when

based

on

a declaratory

judgment

and

when necessary

and

proper.

Ken Leahy

Constr.,

Inc.

v.

Cascade

Gen.,

Lnc.,329

Or

566,575

(1999).

Here,

plaintifls entitlement

to

injunctive

relief

is beyond

dispute.

Plaintiff

has

a

right

to

the

possession,

use, and

enjoyment

of its

property.

Hall

v. State

ex

rel

Oregon

Dep't

of

Transp',

355

Or

503,

51

|

(2014)

(property

owner

has

right

of

possession,

enjoyment,

and

use );

Nearing

v,

l4/eaver,295

Or

702,707

(19S3)

(property

owner

has

legally

protected

interest in

the

use and

enjoyment

of

their

land).

Plaintiff

seeks

the

ability

to

manage

its own

property in

response

to

market

forces

and

subject

to

state

law.

That is unquestionably

a

lawful

pursuit,

but for

the

Ordinance

Even

though

the

Ordinance

is

invalid,

the threat

of

its

enforcement

interferes

with

plaintiff

s use

of

its

property,

constitutingper

se

irreparable

harm.

Indeed,

the

principle

that

an

injunction

is

a

property

remedy

against

enforcement

of an

invalid

law

goes

back

at least

a

century

and

remains

well-established.

Northwestern

Title

Loans,

LLC

v,

Division

of

Finance

and

Corporate

Securities,lS0

Or

App

I

,8

(2002)

(citing

Alum.

IJtensil

Co.

v. City

of

North

Bend,

210

Or

472,419

(1957)

and

the

cases

collected

therein

dating

back to

1905

(if

the threatened

DAVIS

WRIGHT

TREMAINE

LLP

1300

S.W.

Fifth

Avenue, Suite

2400

Portland, Oregon

97201-5610

(503)

241-2300

rnain'(503)

7'78-5299

fax

C

Page

15

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PLAINTIFF'S

MOTION

FOR

SUMMARY

JUDGMENT

DWT

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enforcement

of

an allegedly

invalid

ordinance

or

statute

may

harm

the

property

rights

of

a

party,

the court

has authority

to

issue

an

injunction

to

prevent the

threatened

harm

from

occurring.) )'

Moreover,

under

ORS

23.080,

further

relief

may

be

granted

whenever

necessary

or

proper, and

such

further

relief'

may

include

injunctive

relief.

See

Ken

Leahy

Constr.,

Inc.,

329

Or

at

575.

Here,

injunctive

relief

is

necessary

and

propet because

an

injunction

is

necessary

to

effectuate

the

declaration

that

Ordinance

is invalid

and

to

give

plaintiff complete

relief.

see

id.

at

572,

57

5-7

6

( We

need

not

decide

whether

proof

of

all

the

equitable

elements

of

an

injunction

is

a

prerequisite

in

every

case

seeking

injunctive

relief

under

ORS

28.080

*

* *

fbecause

the

injunction]

here

was

designed

to

provide the

kind

of

complete

relief

to

plaintiff

in

the manner contemplated

by

ORS 28.080

*

{

Documents

Melcliff Associates v City of Portland - Plaintiffs Motion for Summary Judgment